About Me

Buford C. Terrell
Controlled substances laws and their consequences have been the center of my professional life for over fifteen years. I host a public interest television program in Houston, “Drugs, Crime, and Politics” , produced by the Drug Policy forum of Texas, and have done so for most of its ten-year history. Before my retirement, I taught a seminar, “Controlled Substances Law” for many years at South Texas College of Law.
In this blog I intend to explore the features and consequences of those laws, especially the unintended consequences, and look at the need for, and possibility of, changing them. Don’t expect a lot of breaking news or current events, although there will be some. My approach will be more historical and theoretical. I hope to get a lot of criticism – good, bad, and otherwise – and to start some good, heated discussions.

Sunday, January 13, 2013

Enforcing the Law Enforcement Laws

Enforcing
the Law Enforcement Laws

Society
looks to police forces for protection and safety, but are these organizations
protectors or predators?The spectrum of
armed groups in society ranges from somewhat disorganized criminal bands
through vigilante posses and the Ku Klux Klan to police forces to secret and
political police.The question is what,
if anything, distinguishes the police from criminals and klansmen on one hand
and Gestapo and Chekhists on the other.

The
rule of law plays a major role in controlling the spectrum of violence.First, it limits those who can use violence
only to state-sanctioned actors.Armed
robbers cannot legally shoot their victims and the Klan cannot form lynch
mobs.Criminal gangs face punishment if
they settle their quarrels with machine guns.

On
the other end of the spectrum, the rule of law limits and controls the process
and procedures of violence.Without
these controls, including the one that the users act visibly, police agencies
become Gestapo-like secret police.Lack
of both controls and procedures leads to midnight arrests, no-knock raids,
secret and coercive interrogations, and ultimately to Gulags.

Limits
on the targets of violence are also necessary.One of the major flaws in American law enforcement has been to allow the
police themselves to redefine their role from “serve and protect” to “get the
bad guys”.The rule of law limits the
application of violence to those who have broken the law or who are reasonably
perceived as posing an immediate and realistic threat to cause harm.In those cases only that measured violence necessary
to carry out those limited ends is permissible.Viewing law enforcement as “getting the bad guys” reduces the police to
just another street gang with badges (and one should wonder why they insist on
covering their badges and wearing masks while executing that thuggish
behavior).

While
enforcement of the laws against murder, robbery, and rioting are important,
strong enforcement of the laws governing law enforcement itself are even more
important.Insisting that the organs of
the state scrupulously obey the laws themselves is the most important bulwark
against the totalitarian state.

How
do American police and judicial organs stack up?The record is not very good.Some examples tell the story.First, a disclaimer is needed.Most police officers, prosecutors, and judges
do their jobs in a professional manner, but most is not enough.The old adage is that one rotten apple can
spoil the barrel – and just a few outlaw cops are enough to destroy public
trust in the system.Commercial air
travel now averages less than one fatality for every four million flights, but
many are still afraid to fly.Law
enforcement will never be as exactingly correct as air travel, but it should
not fall as far short as it does.

The
following is a short catalog of some of the major ways in which law enforcers violate
the laws of law enforcement:

Profiling:Anyone who has followed the history of the
drug laws knows that who one is is a better predictor of arrest than is what
one does.The rate of arrest and
prosecution of young black males is far above their proportion in the
population in general or of drug users.Around a third of black males are currently under judicial supervision –
bail, probation, incarceration, or parole.An Hispanic federal district judge in South Texas used to tell of the
numerous times he was stopped while driving by the police (and when he
identified himself, the “reason” for thee stop quickly vanished). In the words of the old Big Bill Broonzy song,
“If you’re white, alright; if you’re brown, stick around; but if you’re black,
get back.”In today’s terrorism
hysteria, mid-eastern stereotypical characteristics can also land one in the
hands of the police.

Testilying:Police officers lie under oath; the lie on
the witness stand and in oaths supporting search warrant applications.Even though these lies are felonious, they
are common enough that courthouse jargon has invented a word for the act:
testilying.Since many criminal cases
boil down to a “he said; he said” contest between the officer and the defendant
and since juries are strongly biased in favor of believing the cop, testilying
most often results in getting the “bad guy”.Many prosecutors know that the cop is lying, but they still adduce the
testimony, getting a conviction for their records.They are suborning perjury, itself a felony.

One
of the most insidious effects of testilying is that it is the bedrock that
allows the cop to carry out most of the other tactics discussed.

Snitches:My career in the law – both practicing and
teaching – extends only over forty years and three states, so I haven’t seen
everything.So when I say that I have
never seen a jailhouse snitch tell the truth, I’m not stating a universal; but
the evidence is pretty damn’ strong.The
problem is that snitches (“informants”, to use the mealy-mouthed euphemism) are
paid for their testimony – and a policeman or prosecutor is not going to pay
for exculpatory evidence.Snitches are
paid either in cash, usually from forfeited assets, or leniency in pleas or
reduced sentences.Some DEA professional
snitches have averaged six-figure incomes over periods of several years, and
one Mafia killer was released into the witness protection program in return for
testimony against his boss.He was later
convicted for his violent activities in a drug gang organized while he was a
protected witness.The most notorious
case was that of Whitey Bolger, a Boston mob boss with over twenty killings to
his record, who was protected from both state and federal prosecution for
seventeen years by the FBI.Snitches are
used primarily in organized crime and drug cases, in which neither complaining
witnesses nor physical evidence are available.

Coerced
Confessions:In
the 1990s, five teen-aged (one was still a juvenile) minority boys were
convicted of the rape and murder of a jogger in Central Park (the case is the
subject of a new book, The Central Park
Five).They were convicted on almost
no evidence but their convictions.Unfortunately, they had not done the crime.Many years later the true murder was found
and his guilt confirmed by DNA samples found on the corpse.The boys were exonerated, but the question
remained: why did they confess?The sad
story is that this kind of coerced false confession is wide-spread and the
police have developed many techniques that walk right up to – and sometimes
cross – the line of physical torture.The goal of the cop, whose performance is based on arrests and not on
convictions, is to clear the case, not to find the actual criminal.

As
depressing as this catalog is, it could be much longer.It has not mentioned throw-down evidence,
contempt of cop, or “You may beat the rap, but you can’t beat the ride” among
many other defects in the ways the laws ar enforced.The important point is that all of these
behaviors involve the breaking of the law by the law enforcers.

And
they are almost never prosecuted.Convictions are regularly and routinely overturned because of these
kinds of law enforcement behavior, but prosecution, let alone convictions of
prosecutors or police for perjury or subornation of perjury, civil rights
violations, or many other crimes are so rare as to be invisible.

It’s
time to call the system to task.Citizens
must realize that a thug with a badge is just a thug and take responsibility
for insisting that elected officials oversee the administration of justice as
vigorously as they do other violations of peoples’ rights and persons.

And
in the meantime, make sure a recorder (preferably video) is running anytime you
confront a cop.